Marijuana state prior doesn’t count as “controlled substance offense” under Federal Guidelines

The panel filed (1) an order withdrawing an opinion filed November 23, 2020 (previously amended on December 11, 2020); and (2) an amended opinion reversing the district court’s application of a recidivist sentencing enhancement under U.S.S.G. § 4B1.2(b), and remanding for resentencing, in a case in which the defendant was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The district court applied the enhancement on the ground that the defendant’s prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes § 13-3405(A)(4) qualified as a “controlled substance offense.”

The Arizona statute under which the defendant was convicted included hemp in its definition of marijuana. In 2018, before the defendant’s federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Reviewing for plain error, the panel held that because the federal Controlled Substances Act in effect at the time of the defendant’s federal sentencing excluded hemp, the defendant’s Arizona conviction is facially overbroad and not a categorical match. The panel held that the district court therefore plainly erred in applying the § 4B1.2(b) enhancement. The panel concluded that the error affected the defendant’s substantial rights, and if uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings.

If you have California state marijuana convictions, you need to check the definition used in those statutes. In many respects, California used to use the same definition of marijuana as Arizona.


Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
(619) 357-6677

Do you want to buy our Lawstache merchandise? Maybe a t-shirt?

Want to mail me something (usually mustache related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101

Want to learn about our recent victories?

Are you are a Russian speaker? Вы говорите по-русски?

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!